Citation Nr: 1810731
Decision Date: 02/21/18 Archive Date: 03/01/18
DOCKET NO. 14-09 002 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUES
1. Entitlement to service connection for kidney cancer.
2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD).
REPRESENTATION
Veteran represented by: Military Order of the Purple Heart of the U.S.A.
ATTORNEY FOR THE BOARD
G. Johnson, Associate Counsel
INTRODUCTION
The Veteran had honorable active service in the United States Marine Corps from May 1966 to September 1967. The Veteran received multiple awards and medals including the Purple Heart Medal and the Vietnam Service Medal.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
In his March 2014 VA Form 9 (substantive appeal), the Veteran requested a hearing. In August 2015, the Veteran's representative submitted a written request to withdraw the Veteran's request for a hearing at the local RO. The Veteran's hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.702(e) (2017).
The case was previously before the Board in September 2015, at which time, the Board remanded the issues of service connection for cancer of the kidney, and entitlement to a rating in excess of 70 percent for PTSD to the Agency of Original Jurisdiction (AOJ) for additional development, including, a VA examination to determine the etiology of the Veteran's kidney cancer and to obtain relevant Social Security Administration (SSA) records.
The issue of service connection for kidney cancer is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.
FINDING OF FACT
For the entire period on appeal, the Veteran's service-connected psychiatric disorder symptoms have more nearly approximated occupational and social impairment, with deficiencies in most areas. Symptoms of total occupational and social impairment have not been demonstrated.
CONCLUSION OF LAW
Throughout the period on appeal, the criteria for the assignment of a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411.
REASONS AND BASES FOR FINDING AND CONCLUSION
I. VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A. VA has met the requirements of 38 U.S.C. §§ 5103 and 5103A. By correspondence dated in March 2012, VA notified the Veteran of the information and evidence needed to substantiate and complete the claim. The letter also notified the Veteran as to how VA assigns disability ratings and effective dates.
VA has also satisfied the duty to assist. The claims folder contains service treatment records and VA treatment records. As noted in the introduction, the claim had been remanded for further development, including obtaining SSA records. In November 2015, the RO requested SSA records and received a negative response in December 2015. Additional efforts to obtain the records are unnecessary because the records reportedly do not exist.
The Veteran underwent VA examinations in March 2012, April 2014, and February 2016. The April 2014 and February 2016 examinations are adequate for purposes of this decision. Additional examination is not needed.
As previously discussed, the claim has been remanded for further development. In reviewing the record, the Board finds substantial compliance with the remand directives as concerns the issue being decided. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied the duty to inform and assist the Veteran, and the Board finds that any errors were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board adjudicating the claim.
II. Increased Rating for PTSD
The Veteran seeks a rating in excess of 70 percent for his service-connected PTSD. In March 2014, the Veteran stated that his PTSD had negatively impacted his quality of life. The Veteran reported social isolation, daily flashbacks, irritability, and loss of joy. The Veteran reported that due to his symptoms, he would snap at his spouse and children, he avoided going out and being around people, and when his symptoms were bad, he would stay in his room.
Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id.
Although the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.
When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b).
Service connection for PTSD with an evaluation of 50 percent was granted in an October 2010 rating decision. The Veteran filed a notice of disagreement in November 2010. A rating decision issued in October 2011 increased the initial rating to 70 percent. A rating decision issued in April 2013 continued the 70 percent rating for PTSD.
The Veteran is currently assigned a 70 percent rating for his service-connected PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 and the General Rating Formula for Mental Disorders.
A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id.
A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
A Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Vazquez-Claudio, supra.
However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a Veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009); see also 38 C.F.R. § 4.126(a); compare Massey v. Brown, 7 Vet. App. 204, 208 (1994).
It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the Veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the Veteran's symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017).
For instance, the scores assigned under the Global Assessment of Functioning (GAF) scale may be a relevant consideration. See e.g., Bowling v. Principi, 15 Vet. App. 1, 14 (2001). However, the American Psychiatric Association has since determined that the GAF score has limited usefulness in the assessment of the level of disability. Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice. 79 Fed. Reg. 45093 (Aug. 4, 2014). The Board notes that effective August 4, 2014, the regulations governing the rating of mental disorders were updated to replace all references to the DSM-IV with references to the DSM-V, which no longer utilizes the GAF score system. 80 Fed. Reg. 14308 (Mar. 19, 2015).
A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual.
The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). (Parenthetically, the Board notes that the revised DSM-V, which among other things, eliminates GAF scores, applies to claims certified to the Board after August 4, 2014. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014)).
A November 2010 letter from a VA treatment provider (R.M.) reflects a diagnosis of PTSD. The treatment provider noted that the Veteran was currently working part-time, but had extreme anxiety and hypervigilance at work, which interfered with his performance. The Veteran would often ask to do something different at work, which did not fare well for his prospects of maintaining employment. The treatment provider opined that the Veteran's PTSD significantly affected his social, occupational and personal life to such an extent, that it was felt that he should be 100 percent service connected for PTSD.
A November 2010 letter from the Veteran's employer reflects that the Veteran was placed on leave restriction due to excessive and/or unscheduled absences.
The Veteran was afforded a VA examination in March 2012. The Veteran reported that he had nightmares, difficulty sleeping, intrusive memories, anxiety, and panic attacks. The examiner noted that the Veteran's other symptoms included flattened affect, impaired judgment, and disturbances of motivation and mood. The Veteran reported that he had marital issues and problems with his children, ages 12 and 19, he had few friends, and did not leave his house unless it was necessary. The Veteran was assigned a GAF score of 58. The examiner noted that the Veteran was unemployed due to cancer. In a February 2013 addendum opinion, the March 2012 examiner noted that she did not find evidence supporting the idea that the Veteran was unemployable due to PTSD. The March 2012 examiner opined that the Veteran was not unable to secure and maintain gainful employment from a mental health standpoint. The March 2012 examiner did not discuss the November 2010 opinion from the Veteran's treatment provider, which indicated that the Veteran's PTSD symptoms interfered with his performance, and significantly affected his social, occupational and personal life. Nor did the March 2012 examiner discuss the November 2010 letter from the Veteran's employer, which indicated that the Veteran was placed on leave restriction due to excessive absences. Therefore, the Board finds the March 2012 examination inadequate.
In March 2013 and March 2014, the Veteran's treatment provider, R.M. submitted additional letters in support of the Veteran's disability claim with the Veteran's VA psychiatrist. The treatment providers opined that the Veteran's symptoms of PTSD had significantly impacted the Veteran's life. The treatment providers noted that the Veteran began treatment in April 2010, and the Veteran had been having difficulty maintaining his current part-time employment due to his PTSD symptoms. The treatment providers noted that with the help of treatment, the Veteran was able to maintain employment until March 2012. The treatment providers noted that although the Veteran had benefited some from psychotherapy and medication, they did not think that the Veteran had improved enough to be able to maintain employment. The treatment providers opined that the Veteran was totally and permanently disabled and unemployable due to his PTSD symptoms.
In April 2014, the Veteran was afforded a VA examination. The examiner noted that the Veteran continued to live with his spouse and two children; however, the Veteran's discomfort in crowded situations inhibited their social life. He also reported that irritability interfered with his relationships, and he had limited joy and pleasure in daily activities or hobbies. The Veteran denied any other sources of social support. The examiner noted that the Veteran had no psychiatric hospitalizations, suicide attempts, or psychotic episodes. The Veteran's symptoms included nightmares, hypervigilance, exaggerated startle responses, depressed mood, anxiety, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that in March 2012, the Veteran was assigned a GAF score of 58, indicating a moderate level of severity, and opined that the Veteran continued to exhibit similar levels of severity with his diagnosis of PTSD.
A January 2016 VA treatment record reflects that the Veteran reported that he continued to feel slightly better overall. However, the Veteran reported feeling stressed and down, and continued to work on his feelings of guilt about his son's anxiety. He reported that he was participating in more activities, and was not isolating so much. He also reported that he and his spouse had a weekend getaway, which he enjoyed very much. The Veteran reported no desire to harm himself or others.
The Veteran was afforded a VA examination in February 2016. The Veteran reported that he avoided social and interpersonal interaction whenever he could, and spent most of his time at home in an isolated manner. The Veteran continued to live with his second spouse of 19 years, and his 16-year-old son, his 22-year-old stepdaughter, and her child. The Veteran reported having a close relationship to his children, and his relationship with his spouse was stable, but a little distant. The Veteran reported ongoing nightmares, intrusive thoughts/memories, hypervigilance, and trouble sleeping. The examiner noted that the Veteran's symptoms also included anxiety, chronic sleep impairment, and disturbances of mood and motivation. The Veteran denied suicidal and homicidal ideation. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.
Based on the evidence as outlined above, the Board finds that the evidence does not support the assignment of a rating greater than 70 percent.
The Board acknowledges the November 2010 letter from the Veteran's treatment provider, which opined that the Veteran's PTSD significantly affected his social, occupational and personal life to such an extent, that it was felt that he should be 100 percent service connected for PTSD; and the March 2013 and March 2014 letters from the Veteran's treatment providers, which opined that a rating higher than 70 percent was warranted and that the Veteran was totally and permanently disabled and unemployable due to his PTSD symptoms. While the November 2010, March 2013 and March 2014 letters discussed whether the Veteran was able to secure or follow gainful employment, the opinions did not address whether the Veteran had total social and occupational impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name, or any other comparable symptoms. Further, the Board notes that the Veteran is already in receipt of a TDIU rating for the entire period on appeal, indicating an inability to secure or follow gainful employment.
In considering whether the Veteran is entitled to a higher rating, the Board has carefully considered the contentions and assertions that the Veteran's psychiatric disability is of such severity so as to warrant a 100 percent schedular rating for the entire appeal period. In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which are found to be persuasive or unpersuasive, and provide the reasons for the rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as anxiety, irritability, social isolation, and nightmares because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994).
However, the Board finds that the objective evidence does not demonstrate symptoms that more nearly approximate a higher rating under the General Rating Formula for Mental Disorders. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's PTSD. The evidence of record does not indicate that the Veteran has exhibited persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Throughout the record, the Veteran was consistently found to be oriented. He was able to maintain a relationship with his spouse of 19 years, and relationships with his son and stepdaughter, although, the Board acknowledges that the Veteran reported that he had become increasingly isolated and irritable. The Veteran has never displayed grossly inappropriate behavior, any sort of delusions, or had the intermittent inability to perform activities of daily living. Therefore, as both total occupational and social impairment is required for a 100 percent schedular rating, the Board finds that a 100 percent schedular rating is not warranted.
In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra.
ORDER
Entitlement to a rating for PTSD in excess of 70 percent is denied.
REMAND
The Board sincerely regrets the additional delay that will result from this remand, but it is necessary that there exists a complete record upon which to decide the claims for service connection, so the Veteran is afforded every possible consideration.
The Veteran asserts that his kidney cancer is related to service. Although the Veteran's claim was initially based upon having been exposed to Agent Orange in Vietnam, he has also asserted that his kidney cancer could be due to exposure to contaminated water at Camp Lejeune. In May 2016, the Veteran stated that he was stationed at Camp Lejeune for five months after returning from Vietnam.
Under the recently amended law, kidney cancer is listed as a presumptive disability from exposure to contaminated water at Camp Lejeune. See 38 C.F.R. § 3.309(f) (2017). The recent amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. However, they do not apply retroactively to claims previously adjudicated. Although the Board remanded this claim in September 2015, a remand is not considered a final decision. Thus, this matter is still pending and the amended regulations apply to the Veteran's claim.
The Veteran served in the United States Marine Corps from May 1966 to September 1967. November 1966 service treatment records indicate that the Veteran was treated at the 8th Engineer Support Battalion of the United States Marine Corps headquartered at the Marine Corps Base in Camp Lejeune, North Carolina. However, the Veteran's complete personnel records are not of record and it is therefore unclear when and how long the Veteran was stationed there. The new provisions regarding the presumption of service connection for certain diseases associated with contaminants in the base water supply at Camp Lejeune applies to veterans, or former reservists or members of the National Guard, with no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307 (a)(7)(iii) (2017).
Therefore, the Board finds that a remand is necessary to verify the Veteran's claimed service at Camp Lejeune.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should follow all current development procedures for the development of the claim of service connection for kidney cancer due to exposure to contaminated water exposure at Camp Lejeune.
2. The AOJ should attempt to verify the Veteran's reported service at Camp Lejeune during his service in the United States Marine Corps from May 1966 to September 1967. All requests and responses received should be associated with the claims file. A memorandum documenting the AOJ's determination regarding the reported exposure to contaminated water while serving at Camp Lejeune should also be associated with the claims file.
3. Readjudicate the issue on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period within which to respond thereto.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112.
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs